IN THE CASE OF: 

		BOARD DATE:	    23 July 2013

		DOCKET NUMBER:  AR20120008293 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests her record be corrected to show she was placed on the U.S. Army Commissioned List for August 2010 instead of 10 June 2011 (the date of her current commission). 

2.  The applicant states:

   a.  In autumn 2009, she met with the Assistant Professor of Military Science (APMS) and the Dean of Individualized Studies (DIS) to develop an alternative plan in the event she could not complete the requirements of the nursing program.  The DIS developed a degree completion program in health studies which would allow her to graduate in May 2010 with a Bachelor in Health Sciences (BHS).  The APMS concurred with the action and recommended it to the PMS; however, the PMS recommended she continue in the nursing program.

   b.  In spring 2010, she failed to maintain the minimum grade point average in order to remain in the nursing program.  The DIS informed the APMS that a BHS could be completed provided she completed all of the course requirements prior to August 2010. 
   
   c.  Once the PMS found out she would no longer be on the nursing track, his attitude towards her changed and he did everything he could to delay her commissioning.  The PMS stated she needed to earn her place in the Reserve Officers' Training Corps (ROTC) program and directed her to attend and graduate from basic combat training and advanced individual training before she would be reevaluated by the PMS as to whether she would be enrolled in the autumn semester, or if he would initiate disenrollment.
   
   d.  In May 2010, she requested information from the PMS to write a battle analysis.  During the conversation she learned her request to change her major had not been submitted.  The conversation also showed that the PMS:
   
(1)  did not support her request to change her major
(2)  would not honor the APMS' request to complete a battle analysis
(3)  hoped her request to change her major would not be approved 
   
   e.   On 11 June 2010, she submitted a Congressional Inquiry (CI) to be permitted to attend the Leader Development Assessment Course (LDAC) Summer 2010, complete the Military Studies 402 course (also referred to as    MS 402), finish a 3-credit writing course, and earn a commission in the           U.S. Army Medical Services (MS) Corps.
   
   f.  After graduating from LDAC in August 2010, and speaking with the PMS, she was concerned about the timeframe allotted to complete coursework for an incomplete grade.  The DIS was informed by the APMS that she had not completed the coursework to earn a grade for MS 402.  She ultimately decided to graduate from college on 13 August 2010 in lieu of waiting until she completed the ROTC requirements for MS 402.
   
   g.  On 2 September 2010, she submitted a second CI requesting the PMS honor the letter from the APMS which stated that a battle analysis was the only requirement she needed to complete to have a grade posted for MS 402.  The result of the CI was that she did not meet the requirements for commission.     MS 402 had more requirements than stated in the letter from the APMS.  She then contacted the PMS seeking the coursework needed to earn a grade in       MS 402.
   
   h.  The PMS stated the syllabus was posted on-line and that he would not do anything until her request to change her major was approved or disapproved.  On 11 September 2010, the PMS forwarded her request for a change of major.
   
   i.  She requested assistance from the Cadet Command Office of the Inspector General (IG).  The IG due process inquiry determined the PMS failed to submit her change of major request, improperly directed she join the Army National Guard, and attempted to cause her to have to retake the entire MS 402 course.  She then requested her degree be reopened in order to complete the course.

   j.  The Commanding General directed the PMS to allow her to complete the requirements of the "incomplete" coursework, approved her change of major, and directed that she be properly commissioned, if otherwise qualified.    

3.  The applicant provides:

* a self-authored statement
* a Report of "Incomplete" Work
* grade transcripts
* a 13-page IG Report

CONSIDERATION OF EVIDENCE:

1.  The applicant provides a Report of "Incomplete" Work which shows she was unable to complete the coursework for MS 402A (Leadership in a Complex World) during the Spring 2010 semester.  Her grade earned to date based on course requirements was a "C."  She was to complete a paper which was worth 25 percent (%) of her final grade and an Army Physical Fitness Test (APFT) worth 10% of her final grade not later than 17 December 2010.  The report was signed by the instructor on 14 May 2010.  

2.  The applicant provides and her record contains transcripts, dated 27 August 2010, showing she graduated from the State University of New York College at Plattsburgh on 13 August 2010. 

3.  The applicant's name is included on the scroll among the individuals appointed to the rank/grade of second lieutenant (2LT)/O-1 in the Reserve of the Army under Title 10, U.S. Code (USC), section 12203, on 30 November 2010.  This document does not stipulate a date of rank (DOR) or effective date of appointment.  

4.  Her record contains Appendix Q (Active Duty Service Obligations (ADSO) Grad School, Branch, or Post for ADSO), signed and dated by the PMS and the applicant on 15 April 2011, which shows she requested MS as her branch of choice.

5.  Her record also contains a DA Form 71 (Oath of Office - Military Personnel), which shows she was appointed as an officer in the Army of the United States in the rank/grade of 2LT/O-1 on 22 August 2011.

6.  The applicant also provides a copy of her IG case which states:

   a.  "A review of the Cadet (applicant) record and status revealed many due process irregularities.  It was identified that the host program Professor of Military Science and the officer in charge improperly managed the applicant by directing she join the Army National Guard or U.S. Army Reserve (USAR) in lieu of being disenrolled from the Reserve Officer Training Corps, that she retake the entire MS402A course upon her return (after being awarded an incomplete in the course), and that she submit a request for a change of major due to failing out of her nursing program."

   b.  "A due process review resulted in the Commanding General directing the applicant complete her remaining requirements of her MS402A class and complete the required APFT prior to commissioning and process for commissioning in the active Army." 

   c.  "The applicant met all requirements for commissioning and was commissioned as a 2LT into the active Army and was scheduled to enter on to active duty on 22 August 2011 by reporting to her Basic Officer Leadership Course (BOLC) held at Fort Sam Houston, TX."

7.  The applicant provides and her record contains Order Number 022-005, issued by Headquarters, U.S. Army Human Resources Command, Fort Knox, KY, dated 22 January 2013, which shows she was promoted to the rank of first lieutenant (1LT) with an effective date and DOR of 22 February 2013.

8.  During the processing of this case, on 30 January 2013, an advisory opinion was obtained from the Active Duty Nurse Program Manager, Headquarters, U.S. Army Recruiting Command, Health Services Directorate.  The advisory official recommended disapproval of the applicant's request for an adjustment to her DOR and stated:

   a.  The applicant was awarded her Bachelor's degree in Individual Studies on    13 August 2010.  She attained a Regular Army commission at the BOLC on       22 August 2012.  Her file revealed she had a USAR Oath administered to her on 10 June 2011 at the University of Tampa for 2LT USAR MSC.  The oath corresponds to her basic date of appointment on her Officer Record Brief.  It is unknown how her Basic Active Service Date of 16 August 2011 was created since the advisory official was provided no documentation or explanation of the delay from graduation to commissioning.  The Entry on Active Duty Date of         22 August 2011 corresponds to her BOLC oath as documented in her records. 

   b.  The documents provided do not account for the time between her date of graduation from New York University and an Oath of Office from Florida with a lag time of nearly 11 months.  It can only be surmised that according to her transcripts she had not completed the MS courses and this is a regulatory requirement for commission.  These events were later completed and she, now having completed all requirements, was able to attain a commission and this was completed on 10 June 2011 as evidenced by her USAR commission.

9.  On 1 February 2013, a copy of the advisory opinion was forwarded to the applicant for information and to allow her the opportunity to submit comments or a rebuttal.  On 21 March 2013, she responded to the advisory opinion and stated:

   a.  Her date of commission should be adjusted to 10 June 2010, and her current DOR to 1LT should be adjusted to 22 February 2012.  In the alternative, if her date of commission was not adjusted, she requested her DOR to 1LT be adjusted to 22 February 2012.
   
   b.  She argues due to an improper delay in her commissioning, and pursuant to fairness and equity, her date of commission should be adjusted to 10 June 2010, pursuant to Title 10, USC, section 741 and Department of Defense Instruction 1310.01, her current DOR should be adjusted to 22 February 2012.
   
   c.  Her appointment to 2LT and therefore promotion to 1LT were delayed by  1 year due to unusual circumstances.  The PMS's breach of due process and fairness prevented her from a required class credit.  Had it not been for the PMS's actions, she would have been included on the selection board's list recommending her for appointment in June 2010, and on track for promotion to 1LT a year earlier.  Therefore, his actions constituted an unintended delay in the selection board recommending her for appointment as an officer and promotion.  

10.  Army Regulation 145-1 (Senior ROTC Program) states the date of rank for ROTC cadets commissioned in May or June will be the same as the graduation date of the U.S. Military Academy in the same year.  The date of rank for all other ROTC commissionees will be the date that they executed the oath of office.

11.  Title 10, USC, section 12203, provides that appointments of Reserve officers in the grades of lieutenant colonel and below shall be made by the President.  This authority has been delegated to the Secretary of Defense via Section 1, Executive Order 13384, dated 27 July 2005.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to correct her record to show she was placed on the U.S. Army Commissioned List for August 2010 instead of 10 June 2011 has been 

carefully considered; however, there are some errors the Army Board for Correction of Military Records (ABCMR) cannot correct.

2.  Evidence shows the applicant failed to maintain the necessary grades in nursing school and was dropped from the nursing program in May 2010.  Evidence also shows she elected to graduate from college prior to completing her ROTC curriculum.

3.  Despite evidence of due process irregularities identified by the IG, it appears the applicant did not meet all of the requirements necessary for commissioning until she executed the Oath of Office on 22 August 2011.  There is insufficient evidence to show she completed all the required MS courses prior to this date.     

4.  Title 10, USC, section 1552, the statutory authority for the ABCMR, gives the Board broad authority to correct Army records to remove errors or to remedy an injustice; however, the authority granted by this statute is not unlimited.

5.  The ABCMR may only correct Army Records.  The Board has no authority to correct records created by the other Services or the Department of Defense.

6.  Any correction by the ABCMR must comport with other laws.  The Board may not ignore a requirement contained in, or outcome dictated by, another statute.  Typically, the ABCMR achieves this by changing an operative fact in the record, thereby making a correction in compliance with that statute.  Where officer personnel issues are involved that require approval by the Secretary of Defense, the Board's hands are often tied.

7.  Consequently, based on the authorities cited above, any correction to the applicant's date of commission would effectively amend the Secretary of Defense's action and goes beyond the authority of this Board. 
 
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ___X____  ___X____  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




      _______ _  X_______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20120008293



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120008293



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1